PFAS Expanding the Targets for California’s Proposition 65 Liability

Proposition 65 Background

The California law commonly referred to as “Proposition 65” prohibits businesses from knowingly and intentionally exposing any individual in the State to a listed chemical without first giving a clear and reasonable warning.  Violations of Proposition 65 can lead to penalties of up to $2500 per violation per day, and can carry the possibility of paying a plaintiff attorneys’ fees.  Proposition 65 provides private parties the right to enforce this law on behalf of the People of the State (if the State chooses not to), which has spawned a cottage industry of enforcement plaintiff attorneys capitalizing upon this plaintiff-friendly law.

PFAS Chemicals Added to the List

Under Proposition 65, the State maintains two lists of chemicals: one for carcinogens and another for reproductive toxicants.  The List now exceeds over 900 such chemicals and the State updates the List annually with new additions. 

PFAS (per- and polyfluoroalkyl substances) are a class of thousands of chemicals, and they are found in many different consumer, commercial, and industrial products.  PFAS appear set to take center stage on the Proposition 65 landscape, both from a litigation and regulatory perspective.  In 2017, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) were identified by the State as reproductive toxins and added to the List.  On December 31, 2021, the State added perfluorononanoic acid (PFNA) to the List.  Following a one-year grace period, enforcement for PFNA can now begin on January 1, 2023.  The State is also considering several other PFAS: PFHxS and PFDA.  As research concerning the impacts of many PFAS is intensively proceeding, we would expect the State may identify further PFAS to add to the List in the near future.

Products of Concern

PFAS have many beneficial properties, which has led to its use in many different industries and for varied products.  PFAS can impart oil, water, stain and soil repellent barriers, chemical and temperature resistance, and surfactant properties to products, some of which are considered essential to health, safety, or modern life.  The following are examples of some common products:

  • Water resistant clothing and footwear
  • Upholstery and carpeting
  • Cosmetics and dental products
  • Electronics
  • Paints and other coatings
  • Firefighting foam, and equipment and protective clothing
  • Medical products
  • Paper and cardboard, including food packaging

Recent Notices

Gordon Rees Scully Mansukhani regularly monitors the Proposition 65 Notices of Violation to keep on top of any trends, so that we may promptly inform our clients who may be impacted.  Significantly, we have noticed an important trend over the last 2 months: a dramatic increase in the number of Notices targeting products with PFAS.  Recent Notices have targeted outerwear clothing and rain jackets, baby bibs, bath pillows, duffel bags, umbrellas, shower liners, crib mattress pads, tablecloths, paper straws, and numerous cosmetics.

Tips for Companies to Help Protect Against Proposition 65 Liability

To minimize the potential for Proposition 65 liability, companies should consider the following:

Working with Suppliers to obtain maximum protection: companies obtaining products from upstream suppliers should obtain the best information possible from those suppliers regarding the presence of PFAS in the product, and confirm Proposition 65 compliance in its contract.

Product Testing: Depending upon the circumstances, product testing can be considered.  Attorney involvement should also be considered if testing, as attorney-client privileges may be important.  Also, companies obtaining product from upstream suppliers should request any testing results conducted by the suppliers.

Proper Warnings: Proposition 65 provides a “safe harbor” for those products containing a compliant warning.  The law allows for both long-form and short-form warnings.  The long-form warnings require identification of at least one listed chemical, whereas the short-form warnings generically identify carcinogens and/or reproductive toxicants.  When considering warnings, in the quest to avoid Proposition 65 liability, some companies will provide a Proposition 65 warning regardless of any specific information actually requiring the warning.  We recommend extreme caution attempting to achieve Proposition 65 compliance by providing long-form warnings identifying PFAS without information confirming the presence of PFAS.  The regulatory landscape for PFAS is evolving rapidly, and some states, including California, and have banned the use of PFAS in certain products; thus, a long-form Proposition 65 warning concerning PFAS (without any specific supporting data) raises the potential for triggering liability under other laws.

GRSM regularly counsels clients seeking to comply with Proposition 65 and is available to assist any company seeking advice to maximize its liability protection.

A New Era For Private Cost Recovery Litigation?

In its precedent breaking decision in United States v. Atlantic Research Corporation, decided in June 2007,  the United States Supreme Court held that the plain language of CERCLA  §107(a)(4)(B) authorizes any private party, including PRPs, to commence an environmental cost recovery action.  The Supreme Court added as dictum that it  “assume[d] without deciding”  that §107(a) provided these PRP plaintiffs with the right to pursue a claim for joint and several liability.   CERCLA  §107 is a strict liability scheme that permits a plaintiff to seek joint and several liability without the burden of proving causation.  Prior to Atlantic Research, only the United States or an “innocent landowner” could wield §107’s heavy club.  In the wake of Atlantic Research, any PRP (i.e. polluter) can bring a §107 claim against other PRPs to recover costs.  The only exception is that PRPs who have been defendants in actions brought against them by the United States pursuant to CERCLA  §106 or  §107 must pursue their recovery pursuant to §113, which only permits the recovery of costs on a pro rata basis via contribution.  To those unlucky plaintiffs, §107 is not available.

Are we at the dawn of a new era of private cost recovery litigation?  In traditional §113 actions, the PRP plaintiff has the burden of demonstrating that neither plaintiff nor third parties bear any percentage allocation of responsibility for the cleanup costs at issue.  If this burden now passes from the plaintiff to defendants, defendants may be disinclined to run the risk of being held jointly and severally liable for all of a site’s cleanup costs in the event that their proof falls short.  This risk factor should make defendants more willing to come to the bargaining table earlier.  The same risk consideration should motivate corporate PRP plaintiffs to file §107 suits rather than to let grass grow under their feet.

In weighing possible unfairness to §107 defendants, the Supreme Court noted that  a defendant PRP in  a §107 suit could blunt any inequitable distribution of costs by filing a §113(f) counter-claim.  Thus, once CERCLA liability is established, defendants may avoid joint and several liability by establishing that they caused only a divisible portion of harm. Of course, this course of action is easier said than done and requires a significant commitment of legal manpower to see through to the end.  One court recognized that by providing a RPP with an opportunity to pursue joint and several liability against other PRPs, §107 further encourages a PRP to quickly and voluntarily cleanup a site in the hopes that it might recover its response costs from other PRPs. Raytheon Aircraft Company v. United States, 532 F.Supp. 2d 1306, 1310 (holding that the Court’s decision to permit plaintiff-PRP to pursue joint and several liability under §107(a) found support in Atlantic Research).  In my judgment, the environmental bar should expect that a large number of cost recovery cases will be filed over the next 12 months.